This matter is before the Authority on exceptions to an award of
Arbitrator Robert G. Meiners filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Rules and Regulations. The Union filed an opposition to the
Agency's exceptions.

The Arbitrator sustained a grievance contesting the nonselection of the
grievant for a promotion. The Arbitrator granted the grievant the promotion,
retroactively, with backpay and benefits.

For the following reasons, we conclude that the Agency fails to
establish that the award is contrary to section 7106(a)(2)(C) of the Statute or
the Back Pay Act, 5 U.S.C. § 5596, and we will deny the Agency's
exceptions.

II. Background and Arbitrator's Award

The grievant applied for a promotion to the position of Fuel
Distribution System Worker Supervisor. After evaluating all the applicants, the
advisory panel, which served as the rating panel, listed the selected employee
as the highest of the five candidates; the grievant was rated second highest.
Based on the panel's recommendation, the position was awarded to the selected
employee. A grievance was filed contesting the selection action. The grievance
was not resolved and was submitted to arbitration.

The parties stipulated to the following issue before the
Arbitrator:

Was [the grievant] deprived of a promotion based on a failure of the
Agency to follow NASMIRAMARINST 12335.3(b)?

The Arbitrator found that because the selected employee admitted that
he had executed his application after the closing date of the vacancy
announcement, his application should not have been considered. The Arbitrator
further found that:

Had [the selected employee's application] not been considered, the
evidence indicates that the grievant would have been the highest rated
qualified applicant for the job. The selection was for the highest rated. Thus,
the grievant, not [the selected employee], should have received the promotion.

Id. at 2.

Accordingly, the Arbitrator concluded that the grievance should be
granted and the grievant should be made whole. The Arbitrator ordered the
retroactive promotion of the grievant to the date that the promotion was
erroneously awarded to the selected employee, with retroactive pay and
benefits.

III. First Exception

A. Positions of the Parties

The Agency contends that the Arbitrator's award is deficient because it
violates management's right under section 7106(a)(2)(C) of the Statute to
select from among properly ranked and certified candidates or from any other
appropriate source.

The Agency notes that the Authority has held that section 7106(a)(2)(C)
provides that management has the right in filling positions to select from a
group of properly ranked and certified candidates or from any other appropriate
source. The Agency acknowledges that the Authority has upheld arbitration
awards that directed that a specific individual be selected for or promoted to
a position where (1) the award results from the enforcement of an arrangement
by the parties; or (2) the arbitrator determines that the employee was affected
by an improper agency action that directly resulted in the failure of the
employee to be selected or promoted. The Agency contends that the first
situation is not applicable to this case because the Arbitrator did not rely on
any provision of the parties' agreement.

As to the other circumstance where the Authority will enforce such an
award, the Agency contends that the Arbitrator failed to make the required
determination that an improper Agency action directly resulted in the failure
of the employee to be promoted. The Agency argues that although the Arbitrator
found that the Agency committed an improper action by considering the selected
employee's application and subsequently selecting that individual, the
Arbitrator never made the determination that the grievant would have been
selected if he had been the highest ranked applicant.(2) The Agency concedes that if the
selected employee had not been considered, the grievant would have been the
highest rated qualified applicant for the job, but asserts that the Arbitrator
made no finding, implicit or explicit, that the grievant would have been
selected if the selected employee had been disqualified. The Agency maintains
that although "the grievant might have been selected from the group of the four
remaining candidates . . . management would have had complete
discretion to select any one of the four remaining candidates or management
might have decided not to select any of the candidates . . . ." Exceptions at
5. The Agency argues that the only attempt by the Arbitrator to explain his
award directing the grievant's promotion were "two rather cryptic sentences[:]
'The selection was for the highest rated' [and] 'Thus, the grievant, not [the
selected employee], should have received the promotion.'" Id. at 4. The
Agency asserts that these statements cannot be interpreted as meeting the
required finding that the improper Agency action directly resulted in the
failure of the grievant to be selected. The Agency argues that the "closest"
the Arbitrator comes to making the required finding "that the grievant
would have been selected" was his statement that "the grievant
should have been promoted." Id. at 5 (emphasis in
original).

The Union contends that it is implicit from the record and explicit
from the Arbitrator's award that the grievant would have been promoted to the
position, but for the Agency's action, which the Arbitrator determined was
improper.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is
contrary to management's right to select under section 7106(a)(2)(C) of the
Statute.

Section 7106(a)(2)(C) provides that management has the right in filling
positions to select from a group of properly ranked and certified candidates
for promotion or from any other appropriate source. When an arbitrator is not
enforcing an arrangement, management's right to make selections for promotion
can be abridged by an award of an arbitrator only when the arbitrator finds a
direct connection between improper agency action and the agency's failure to
select a specific employee for promotion. For example, Federal
Deposit Insurance Corporation, Chicago Region and National Treasury Employees
Union, Chapter 242, 45 FLRA 437, 443 (1992). The Agency contends that the
Arbitrator failed to find a direct connection between the Agency's improper
consideration of the selected employee's application and the Agency's failure
to select the grievant for promotion. We disagree.

We analyze arbitrators' awards of retroactive promotions with respect
to section 7106(a)(2)(C) in the same manner as we would review such awards of
retroactive promotions with backpay under the Back Pay Act. Id. Thus, we
will review these awards for evidence of a finding by the arbitrator of a
causal connection between an unwarranted agency personnel action and an
agency's failure to promote an employee and not for a specific recitation of
certain words and phrases. Id.

In this case, we find that the Arbitrator made the required finding of
a direct connection between the grievant's failure to be selected for promotion
and the Agency's improper consideration of the selected employee's untimely
application. The Arbitrator specifically found that "[t]he selection was for
the highest rated." Award at 2. The Arbitrator further found, as conceded by
the Agency, that the grievant was the second highest rated applicant. Finally,
the Arbitrator specifically found that the grievant should have received the
promotion. Therefore, the Arbitrator made the required causal connection that
the grievant, being the next highest rated applicant, should have received the
promotion upon the disqualification of the selected employee. In this regard,
we reject the Agency's contention that the requisite finding was not made
because the Arbitrator stated that the grievant "should," rather than "would,"
have received the promotion. Accordingly, we will deny the Agency's
exception.

IV. Second Exception

A. Positions of the Parties

The Agency contends that the Arbitrator's award does not satisfy the
requirement of the Back Pay Act that an arbitrator must find that the grievant
would have been selected "but for" the agency's "unjustified or unwarranted"
personnel action in order to award backpay. Exceptions at 7. The Agency
concedes that the Arbitrator did determine that the Agency committed an
unwarranted personnel action by considering the selected employee's
application. However, the Agency argues that the Arbitrator "never cited any
evidence which might have led him to believe that the grievant would have been
selected if the selectee had not been considered." Id. The Agency argues
that the Arbitrator never made a specific finding, "and it is not implicit from
the record," that the grievant would have been selected "but for" the Agency's
action. Id. at 7-8. Accordingly, the Agency con